November 3, 2010

Judging Judges in Iowa

On election day 2010, Iowa voters removed three state supreme court judges from the bench because those judges had joined in the court’s unanimous opinion in Varnum v. Brien, the 2009 decision holding unconstitutional, under the state constitution, the state’s prohibition against same-sex marriage. As the New York Timesreported, “[a]fter years of grumbling about ‘robed masters,’ conservatives demonstrated their ability to target and remove judges who issue opinions they disagree with.” The Times also reported that similar ouster campaigns had begun on a variety of issues, including a woman’s right to choose, taxes, tort reform, and health care.

When the United States Supreme Court rules in favor of upholding an individual right and against the legislature that enacted the law undermining that right, there is usually some cry of outrage at the temerity of “activist” judges “legislating from the bench.” Given the cases in which the cry of activism is made—Roe v. Wade, of course, but also Bush v. Gore and District of Columbia v. Heller—it seems fair to describe an activist decision as one whose result you just don’t like.

The difference between the U.S. Supreme Court and the Iowa Supreme Court—indeed, most state supreme courts—is that we cannot remove the judges who sit on the former court quite so easily. To remove a federal judge from the bench, the House of Representatives must issue articles of impeachment and the Senate must convict. This has happened only rarely, and Congress has never been able to muster majorities in favor of ousting a federal judge because of disagreement with the substance of a particular decision.

But in Iowa, the situation is different. There, judges must face retention elections, and this year well-funded groups—primarily from outside the state—that disagreed with the result in Varnum urged citizens to express their outrage at the polls. They did so, in the words of one person who organized opposition to retaining these judges, to send a message to the court’s other and future members: be careful about how you decide certain cases if you would like to keep your job.

The framers of the U.S. Constitution likely would have looked askance at the suggestion that the enjoyment of individual rights like due process and equal protection of the law should essentially be subject to a majoritarian veto. A primary reason for a separate and independent judiciary is the protection of individual rights from the whims of the majority. Surely those groups opposed to same-sex marriage would not want their right to marry, or to protest marriage, put to a vote. They might not like the outcome. The time has come, in Iowa and elsewhere, to reconsider the wisdom of any method of selecting judges that undermines their ability to enforce basic constitutional values.